The Slovenian legislature has not fulfilled its obligations under the provisions of Article 2(n) of the Dublin Regulation. The possibility of an analogous application of Article 68 of the Aliens Act-2 has a very weak basis in terms of the objective criteria required. It can only be sufficient in a particular case if in light of the specific circumstances of the case there is no doubt about the existence of the risk of absconding.

Facts:

The Asylum authority limited the Applicant’s freedom of movement for the purpose of a Dublin transfer. The Applicant in the past left the open reception centre twice and was already deported to Germany under the Dublin Regulation after a second attempt (first attempt of deportation failed because he absconded). The Applicant returned to Slovenia and applied for asylum for the fourth time. The Applicant stated that he does not want to go to Germany and that he would always come back. The Asylum authority concluded that he presents a serious risk of absconding.

Decision & Reasoning:

In this case the Court took the opportunity to address all legal questions regarding deprivation of liberty for the purpose of a Dublin transfer.

Regarding the latter, the use of Article 28 of the Dublin III Regulation must be in accordance with the material conditions of detention under Article 31 of the Geneva Convention. In the present case the relevant provision is the second paragraph of Article 31, under which the signatory states may not restrict the movement of the applicant, unless it is "necessary", or such restrictions can only be imposed until the status of an applicant in the country is legalized or until the applicant has not received permission to enter another country. Since according to EU law, an asylum seeker who is under the Dublin procedure is legally on the territory of Slovenia, the essential question for the Court to assess remains whether detention is necessary.

2. The question whether the contested measure constitutes a restriction of freedom of movement or deprivation of personal liberty

The Applicant at the court hearing described the circumstances of the detention, among others, that he cannot leave the Centre for Foreigners whenever he wants. The contested detention must be assessed in light of the right to personal liberty under Article 19 of the Constitution and Article 6 of the Charter and Article 5 of the ECHR and not from the perspective of the right to freedom of movement. Since the applicant as an asylum seeker is not illegally in Slovenia, the legal basis for detention in the present case in light of the ECHR is Article 5(1)(b). According to this provision it is permissible to detain persons in order to "secure the fulfilment of any obligation prescribed by law." Such an obligation is imposed by the Dublin Regulation, namely that the applicant for international protection does not impede the implementation of the transfer procedure by absconding (Article 28(2) Dublin III Regulation).

3. Interpretation of standards "substantial risk of absconding" in conjunction with the test of necessity and the purpose of detention under Article 28(2) of the Dublin III regulation

The argument of the Asylum authority that decision on detention falls under their discretionary power is incorrect. The administrative court in certain cases from 1999 onwards on the basis of international law and constitutional standards reiterates that the administrative decision to withdraw personal liberty of the applicant for international protection cannot be discretionary. The Supreme Court confirmed this position stating that a decision on detention is not based on discretion, but on whether the conditions prescribed in the Dublin Regulation are fulfilled.

The conditions are the following:

A. The purpose of transfer: facilitating execution of a transfer procedure

This means that the Asylum authority has to pay attention to whether an objective obstacle to the implementation of the transfer does not exist, because if it exists, then the test of necessity reduces the justification of detention in proportion to the lower degree of probability of successful execution of the transfer. The Supreme Court also stated that the Asylum office before ordering detention is obliged in the shortest possible time to acquire as much relevant information for their decision on detention as possible or that information they already possess is verified with due diligence.

B. The standard of proof: a significant risk of absconding

“Significant” must be interpreted closer to the standard of "substantial" threat than the standard of only "perceived" threat. This conclusion is apparent from a comparison with the English version ("Significant"), the Italian version (“notevole"), the Croatian edition („velika opasnost“) of this standard, while the French version talks about important or non-negligible danger (" un risque non négliegable"). Specified risk of absconding, especially when it comes to single and healthy men, can often exist, but it is not sufficient to impose the detention measure. Risk of absconding must therefore be substantial or significant.

C. Objective (legal) criteria for the risk of absconding

The essential question in these matters is how this risk is established or which specific circumstances are shown in the risk of absconding. The Dublin III Regulation requires Member States to precisely define these reasons in national law (Article 2(n) of the Dublin Regulation). The Slovenian legislature did not abide by this obligation, therefore this questions remains very open and allows large differences in national case-law on the wide or narrow interpretation of the risk of absconding. The administrative court held that for reasons of legal certainty and reliability as well as a more equal protection of rights it is acceptable in such cases to use, by analogy, arrangements under the Aliens Act-2, which were adopted by the Slovenian legislature when transposing Article 3(7) of the Return Directive. The standard of proof under the Return Directive is significantly lower than under the Dublin Regulation, since the Return Directive requires only "the existence of risk", while under the Dublin Regulation, the risk should be "substantial". The Supreme court notes that all the criteria listed in Article 68 of the Aliens Act-2 cannot be used, but only those that comply with the specific characteristics and objectives of the Dublin III Regulation. At least the third, fourth and fifth alinea of Article 68(1) correspond to an objective criterion for the definition of a risk of absconding in accordance with the requirements of the Dublin III Regulation (the alien’s res judicata conviction for criminal offence; possession of foreign, forged or otherwise modified travel and other documents; the provision of false information or non-cooperation in the procedure).

The objective (legal) criteria for the risk of absconding is directly related to the criteria set out in Article 5 of the ECHR in terms of the assessment of the quality of legal provisions which prescribe detention. The assessment of legality under Article 5 of the ECHR means that the legal basis satisfies the requirements of legal certainty and predictability in the sense that the provision is accessible and sufficiently precise, predictable and that it prevents arbitrariness. It is important whether the poor quality of legal norms actually affected the decision. In cases Abdolkhani and Karimnia v. Turkey (para. 125-135) and in Keshmiri v. Turkey (para. 33) the Court noted that the government may rely on certain provisions of detention, but the Court found that these provisions are not related to deprivation of liberty in the context of deportation, but are related to the organisation of stay for foreigners and therefore, the Court ruled that detention in these cases had no legal basis. Since the Slovenian legislature has not fulfilled its obligations under the Article 2(n) of the Dublin III Regulation, the possibility of an analogous application of the Article 68 of the Aliens Act-2 is a very weak basis in terms of the objective criteria required. It can only be sufficient in a particular case if in light of the specific circumstances of the case there is no doubt about the existence of the risk of absconding.

D. Individual assessment of the specific circumstances of the risk of absconding

A significant risk of absconding must always be assessed on the basis of each individual case and circumstances relating to each applicant.

E. The measure must be proportionate (necessary) and the application of a less coercive measure would be ineffective

The standard of proportionality or necessity must be assessed having regard to the Article 52(1) of the Charter and the decisions of the Constitutional Court in case No. Up-1116/09-22 of 3.3.2011 (strict proportionality test), while the standard that it is not possible to use other less coercive means must be considered in conjunction with Article 8(4) of the Reception Directive. This provision says that "Member States shall ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the submission of a financial guarantee, or an obligation to stay at a certain place are determined by national law." This requirement, in conjunction with recital 20 of the Dublin Regulation imposes on national legislators to regulate other effective measures that do not constitute detention. The only existing alternative to detention prescribed in International Protection Act-1 is the restriction of movement in the area of an open reception centre.

F. The intensity of judicial review of the lawfulness of detention

The CJEU in cases on detention established that national courts have to verify the legality of detention based on the standard of rigorous scrutiny. In the case of Mahdi, which relates to the question of the intensity and integrity of judicially reviewing the extension of a detention order of an alien who is illegally in the territory of the EU and is in the process of removal, the CJEU requires national courts to decide on "all factual and legal elements /.../, for which it is necessary to thoroughly examine the facts of each case /.../ the judicial body must be able to take into account both the facts and the evidence relied upon by the administrative authority /.../ as well as any comments by a third country national. In addition, it must be able to note all the other elements that are important for the decision, if considered necessary. It follows that the powers of the judicial authority in the context of the review cannot be limited to submissions by the administrative authority.”

Regarding the facts of the concrete case, the Court concluded that despite the fact that the Asylum Authority did not refer to any of the objective criteria on the risk of absconding from Article 68 of Aliens Act-1, the Court could conclude that alinea 5 of Article 68 (obstruction of the procedure) is relevant in the present case.

Regarding the use of alternatives, the Court notes that the Asylum authority used inappropriate argumentation why alternatives cannot be used in this case (statistics and that the security guard at the open reception centre and the administration in the centre are unable to provide sufficient security in order to effectively implement less coercive measure). The non-use of alternatives has to be justified based on the degree of the risk of absconding that results from the personal characteristics of the applicant and not by general statements that the security in the open reception centre cannot be sufficiently secured. Despite inappropriate argumentation used by the Asylum authority, the Court nevertheless agrees that the alternative cannot be used in the present case because the applicant presents significant risk of absconding.

Outcome:

The appeal was rejected.

Subsequent Proceedings :

Several judgments have since followed from this ruling, namely Case IU 1731 / 2016-13 of 8 December 2016 where the Administrative Court held that the legislature was yet to rectify the weaknesses in the legislation and that this subsequently had an impact on the assessment the legality of the detention measure. The Administrative Court, Decision I U 618/2017-14 of 6 April 2017 further held that the criterion listed in the fifth alinea of Article 68(1) on 'non-cooperation in the procedure' does not meet the precision and predictability criteria required under the Dublin Regulation and, according to the position of the Court of Justice, such provisions can not be applied. Therefore, the decision to detain the applicant on grounds of non-cooperation was unlawful in light of Article 28(2) and 2(n) of the Dublin Regulation.

Observations/Comments:

It is questionable that the Court, despite the lack of referral by the Asylum authority to specific objectively defined criteria on how to assess the risk of absconding, finds its own justification of which objective criteria the Asylum authority should have used and upholds the detention order. This point is also valid on the argumentation relating to the use of alternatives, where despite finding that the Asylum authority did not use the appropriate justification for not using the alternative to detention, the Court provided its own justification why an alternative could not be possible in the concrete case.